While there is no question that Citizenship and Immigration Canada’s (“CIC”) process for sponsoring parents to come to Canada treats applicants differently on the basis of family status, it remains to be seen if this differential treatment is justified.

On February 3, 2015, the Federal Court of Appeal found that the Canadian Human Rights Commission’s (“CHRC”) decision to dismiss a complaint regarding CIC’s differential treatment of those seeking to sponsor parents and grandparents was unreasonable in Attaran v Canada (Attorney General), 2015 FCA 37.

Facts

In 2009, Amir Attaran, a professor and Canada Research Chair in Law, Population Health, and Global Development Policy at the University of Ottawa, started the process to sponsor his parents under the family class to come to Canada from the United States pursuant the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).

The process has two parts: (1) an assessment of the sponsorship application, and (2) an assessment of the application for permanent residence. At the time of the complaint, CIC’s intended timeline for sponsoring parents and grandparents was about 37 months, compared to the stated goal of 42 days for spouses or dependent children.

Professor Attaran filed a complaint with the CHRC, which designated an investigator. The investigator recommended the complaint be dismissed and the CHRC accepted this recommendation.

The CHRC’s basis for dismissing the complaint was that there was a bona fide justification for the differential treatment of those seeking to sponsor parents and grandparents. This was based on submissions made by CIC. There was, therefore, no formal inquiry made into the complaint.

Federal Court Decision

The Federal Court dismissed Professor Attaran’s application for judicial review, finding that the CHRC based its decision not to conduct an inquiry on whether there was a bona fide justification for how the CIC handled sponsorship applications for parents and grandparents.

The Federal Court of Appeal Decision and Undue Hardship

The majority of the Federal Court of Appeal, however, found that this decision was unreasonable.

Section 40(1) of the Canadian Human Rights Act, RSC, 1985, c-H-6 (“CHRA”) provides that a person who has reasonable grounds for believing that a practice is discriminatory can file a complaint to the CHRC. Family status is included as a prohibited ground of discrimination in section 3 of the CHRA

A discriminatory practice can, however, be exempted from scrutiny if there is a bona fide justification for the differential treatment, as stated in section 15(1)(g) of the CHRA. However, according to section 15(2), this exemption is only available if accommodating the affected individuals would impose an undue hardship. Health, safety, and cost are relevant considerations when considering whether undue hardship is made out.

Writing for the majority, Justice Webb argued that, in light of section 15(2), CIC’s differential treatment of family class sponsorships for parents and grandparents could only be justified if treating these applications the same as those for spouses and dependent children would impose an undue hardship on CIC.

In finding that there was a bona fide justification for the discriminatory treatment, however, Justice Webb noted that the CHRC’s decision made no reference to undue hardship. In fact, the only place in the CHRC’s report where the term “undue hardship” was mentioned was in the paragraph where the investigator addressed the submissions made by Professor Attaran.

Instead, the CHRC based its decision on the argument that it is within the Minister’s power to make discretionary decisions regarding the levels of various categories of immigrants based on social and economic considerations.

For the purposes of the CHRA, ministerial discretion is not a recognized exception and cannot, on its own, support a finding of undue hardship. Justice Webb allowed the appeal and referred the matter back to the CHRC for redetermination.

In the concurring reasons, Justice Stratas expressed doubt that the CHRC conducted its investigation as thoroughly as it is obligated to, stating that

the investigator basically pasted CIC’s explanations into the investigation report, nothing more. Then the Commission simply adopted the investigator’s report with the pasted explanations in it (para 54).

The dissenting judge stressed the importance of showing deference to a specialized administrative body. He argued that the majority was essentially looking for greater precision in the CHRC’s reasons, but the outcome of the Commission was not outside the range of possible, acceptable outcomes, defensible in respect of the facts and the law.

Looking Forward

As of writing, the Federal Government has not yet indicated whether it will seek leave to appeal the Federal Court of Appeal decision to the Supreme Court of Canada, although recent history would suggest that it is likely that leave will be sought.

Even if the Federal Court of Appeal’s decision stands, it remains uncertain whether those seeking to sponsor parents or grandparents will have their applications treated with greater parity going forward.

A CHRC investigation could lead to corrective measures being imposed on CIC. However, it is still possible that the CHRC could again find that an investigation is not necessary, although the Commission would have to address the issue of undue hardship.